Crimes Punishable by the Death Penalty

A February 4, 2019 article in the criminal justice newsletter, The Appeal, features the case of Demetrius Howard, a California prisoner sentenced to death for a crime in which he didn’t kill anyone. Howard was sentenced to death in 1995 for his participation in a robbery in which another man, Mitchell Funches, shot and killed Sherry Collins. Howard was never accused of firing a shot and he has consistently maintained that he neither expected nor intended that anyone would be killed. But under California’s felony murder law, he was eligible for the death penalty because he participated in the robbery. In a letter to The Appeal, Howard wrote, “I am no saint or some angel. I’ve made my share of wrongs, but I haven’t killed no one [or] told anyone to kill someone.”

California is one of twenty states that allow the execution of defendants who neither killed nor intended that a killing take place. The controversial practice has attracted the most attention in the state of Texas, where at least six prisonershave been executed despite undisputed evidence that they were not involved in the killing itself. In Howard’s case, the man who actually shot Collins, Mitchell Funches, received a sentence of life without parole when the jury in his trial could not reach a unanimous decision on whether to sentence him to life or death. In 2018, California passed a law that narrowed the scope of the felony murder law, making defendants liable for murder only if they were the killer, solicited the killer, or acted with reckless indifference to human life. The change is retroactive, but does not apply to Howard because the jury found that he had “acted with reckless indifference to human life” before it sentenced him to death.

Howard’s death sentence is also a by-product of outlier death-penalty practices in San Bernardino County. San Bernardino is one of five Southern California counties that imposed more death sentences between 2010 and 2015 than 99.5% of U.S. counties, earning the region the nickname “the new death belt.” In 1993, shortly before Howard was sentenced to death, there were 10 active capital trials in the county, and then-District Attorney Dennis Kottmeier said he was considering seeking it in two other cases. At the time, Kottmeier told the San Bernardino County Sun, “That’s higher than I’ve ever seen it. At any given time in the past the number pending seemed to be about six.” He attributed the high number of capital cases to a high rate of violent crime, as well as state laws passed in 1990 and 1993 that expanded the list of death-eligible crimes. The California Attorney General’s 2017 report, Homicide in California, shows that despite its disproportionate pursuit of capital punishment, San Bernardino’s higher-than-average murder rate has remained the same from 1997 to 2017, while murder rates have declined statewide and in many of California counties during that period.

Sixteen years after a notorious and now-discredited forensic witness told a Mississippi jury that Jeffrey Havard had sexually abused and shaken his girlfriend's six-month-old daughter to death, Havard's death sentence—but not his conviction—has been overturned. On September 14, 2018, Adams County Circuit Judge Forrest Johnson ruled that state pathologist Steven Hayne's recantation of his diagnosis that infant Chloe Britt had been a victim of Shaken Baby Syndrome was "not sufficient to undermine this court's confidence in the conviction," but that "there is a cautious disturbance in confidence of the sentence of death, even if slight." Havard's co-counsel, Graham Carner, told the Mississippi Clarion Ledger, "With all due respect, we think the court got it wrong. We are disappointed, but we are not done." Washington Post columnist Radley Balko criticized Johnson's five-page ruling—which repeatedly misspells the expert's name as "Haynes"—as "gutless" and "sloppy." Balko, whose book The Cadaver King and the Country Dentist: A True Story of Injustice in the American South exposed rampant irregularities in forensic testimony in Mississippi murder cases, said, “It doesn’t seem like too much to ask that the judge correctly spell the name of the state’s expert whose testimony is the entire reason that the hearing took place.” During a 2002 trial that rocketed from jury selection to a death sentence in just two days, the state—supported by Hayne's testimony—argued that Havard had anally and orally raped the infant and shaken her sufficiently to cause injuries that would later kill her. The defense presented a single witness who provided all of three pages of testimony, failing to challenge the forensic testimony in the case. Defense counsel also failed to explain to the jury that, as Balko writes, Havard supposedly "anally raped the infant, orally raped her, shook her violently enough cause injuries that would later — but not immediately — kill her, then bathed and cleaned her" so thoroughly that "none of Havard’s hair, skin cells or semen was found on or inside the girl," "dressed her, and tucked her into bed as if nothing had happened" — all in the time it took Chloe's mother to go the store "to buy some burrito supplies." Since the trial, Hayne has recanted his testimony that Chloe was sexually assaulted and says he was wrong to attribute the child’s head injuries to SBS (Shaken Baby Syndrome). Hayne had testified under oath that he regularly performed 1,500 or more autopsies each year, nearly five times the maximum number recommended by the National Association of Medical Examiners. He had never been certified in forensic pathology by the American Board of Pathology and failed the certification exam in 1980. Three other reputable experts who reviewed Hayne’s autopsy report found no evidence of abuse on the infant. In 2008, he was barred from doing autopsies for Mississippi prosecutors and the U.S. Court of Appeals for the Sixth Circuit called his work declared "discredited." At least ten men and women have been exonerated from death rows across the United States after having been wrongly convicted for killing a child. In the cases of Rodricus Crawford and Sabrina Butler, the medical evidence also showed that no crime had occurred, but the defendants were convicted based on false forensic testimony. In April 2018, Vicente Benavides was exonerated from California’s death row after the prosecution presented false forensic testimony claiming that a toddler in his care had been sexually assaulted.

lllinois Governor Bruce Rauner has conditionally vetoed a gun-control initiative unless the legislature agrees to reinstate capital punishment in the state. Exercising an amendatory veto—a power some governors are granted that permits them to amend legislation in lieu of an outright veto—Rauner called for making the killing of a police officer or any murder in which more than one person was killed a new crime of "death penalty murder." In a May 14, 2018 news conference at the Illinois State Police forensic laboratory in Chicago, Rauner said "individuals who commit mass murder, individuals who choose to murder a law enforcement officer, they deserve to have their life taken." He attached his death-penalty plan and several other gun-control amendments to a bill that would have established a 72-hour waiting period for the purchase of assault rifles in Illinois. Legislative leaders and major Illinois newspapers blasted the action as diversionary political gamesmanship by a weakened governor facing a difficult re-election campaign, and said the death-penalty plan had little chance of enactment. Democratic state Rep. Jonathan Carroll, the gun-control bill's sponsor, said the governor had not consulted him about possible changes and had "hijacked my bill and put politics ahead of policy." Senate President John Cullerton said: “The death penalty should never be used as a political tool to advance one’s agenda. Doing so is in large part why we had so many problems and overturned convictions. That’s why we had bipartisan support to abolish capital punishment.” Thomas Sullivan, the co-chair of Commission on Capital Punishment in Illinois appointed by Republican Gov. George Ryan, said Rauner's plan was a “lousy idea.” He called the death penalty expensive and time-consuming, and said, "It doesn’t reduce crime." The Chicago Tribune editorial board characterized Rauner's amendatory veto as "cynical" and a "death penalty ploy" that the paper said was intended "to re-establish [Rauner's] bona fides with disgruntled conservative Republicans." A Chicago Sun-Times editorial said the governor knew he was "load[ing] up the bill with so many major new provisions that there is no way" the state legislature would approve it, enabling Rauner to claim he "didn’t technically kill the cooling off period ... without strictly telling a lie." In 2000, after a series of death-row exonerations, Ryan declared a moratorium on executions in Illinois and appointed the commission, and in 2003 commuted the sentences of everyone on the state's death row. Democratic Gov. Pat Quinn signed a bill to abolish the state's death penalty in 2011. The Tribune editorial said: "The death penalty issue in Illinois was examined and debated for years in light of notorious incidents of wrongly convicted defendants sent to death row. In Illinois, the legitimate sentiment of many that certain heinous criminals should be put to death was weighed against the risk of errors, and the decision was made to end capital punishment. ... [N]othing has changed to make Rauner’s [May 14] announcement worthy of consideration."

Americans of all ages, races, and political affiliations overwhelmingly oppose the Trump administration plan to pursue capital punishment for drug overdose deaths and believe it will have no effect on addressing the opioid public health crisis, according to a March 16-21, 2018 nationwide Quinnipiac University poll. By a 50-percentage-point margin (71% to 21%, with 8% saying they did not know or would not answer), Americans oppose the death penalty for persons convicted of selling drugs that contributed to a fatal overdose (click on graph to enlarge image). Three-quarters of Americans (75%-20%-5%) said that using the death penalty for drug sales leading to overdose deaths will not help stop the opioid crisis. Nearly three-fifths of Republicans (57%) both opposed the administration’s plan and thought it would not work. Opposition to the use of the death penalty for drug-overdose sales was highest among African Americans (90%), Democrats (87%), voters aged 18-34 (82%), and college-educated Whites (77%). 73% of women and 70% of men opposed the plan, as did 69% of Whites, Hispanics, and Independents. By margins of more than 3 to 1, men and women, Blacks and Whites, and Democrats and Independents also said using the death penalty would not help stop the opiod crisis. Hispanics by a margin of 2 to 1 thought it would not work. The Quinnipiac Poll also asked the 1,291 voters it surveyed several questions about the death penalty itself. In a question that asked simply “Do you support or oppose the death penalty for persons convicted of murder?,” 58% said they supported capital punishment, while 33% opposed. That contrasted with the most recent Gallup Poll, which reported 55% support for the death penalty, and the Pew Research Center poll, which reported support at 49%. When asked “Which punishment do you prefer for people convicted of murder: the death penalty or life in prison with no chance of parole?,” 51% of Quinnipiac Poll respondents said they preferred life without parole, versus 37% who preferred capital punishment. A Quinnipiac news release said this was the first time since the poll began asking this question in 2004 that a majority of Americans said they preferred the life-sentencing option. At the same time, however, poll respondents said by a 2 to 1 margin that they would not like to see the death penalty abolished nationwide. Democrats split on that question at 47%-46% in favor of abolition, but substantial majorities of every other demographic opposed abolition. “It’s a mixed message on a question that has moral and religious implications,” said Tim Malloy, the assistant director of the Quinnipiac University Poll. “Voters are perhaps saying, ‘Keep the death penalty, but just don’t use it.”

The U.S. Supreme Court has declined to review a sweeping challenge to the constitutionality of capital punishment brought by Arizona death-row prisoner Abel Hidalgo (pictured). After scheduling consideration of Hidalgo v. Arizona for ten separate court conferences, the Court on March 19 unanimously denied Hidalgo’s petition for writ of certiorari. In a statement issued in conjunction with the Court’s ruling, however, Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, expressed concern about a second issue raised by Hidalgo—the constitutionality of Arizona’s method of deciding which defendants are eligible for the death penalty. The four justices said that the Arizona Supreme Court had misapplied Supreme Court precedent on that “important Eighth Amendment question,” but believed the factual record was insufficiently developed to warrant the court’s review of the case at this time. Hidalgo had presented records from more than 860 first-degree murder cases over an eleven-year period in Maricopa County—where he was charged—showing that 98% of first-degree murder defendants in that county were eligible for the death penalty, but had been denied an evidentiary hearing to further develop the issue. This “evidence is unrebutted,” the four justices said, and “would seem to deny the constitutional need to ‘genuinely’ narrow the class of death-eligible defendants.” Although “[e]vidence of this kind warrants careful attention and evaluation,” they wrote, the absence of an evidentiary hearing had left the Court with a factual record that “is limited and largely unexamined by experts and the courts below.” With an “opportunity to fully develop a record with the kind of empirical evidence that the petitioner points to here,” the four justices said, “the issue presented in this petition [would] be better suited for certiorari.” The court declined without comment to review a broader challenge Hidalgo presented to the constitutionality of capital punishment itself. Hidalgo is one of many death-row prisoners to raise that issue in the wake of a 2015 dissent by Justices Breyer and Ginsburgin Glossip v. Gross in which they said it is “highly likely that the death penalty violates the Eighth Amendment” prohibition against cruel and unusual punishments.

Today, DPIC launches a new podcast series, "Discussions With DPIC," which will feature monthly, unscripted conversations with death penalty experts on a wide variety of topics. The inaugural episode features a conversation between Texas Defender Services staff attorney Kate Black (pictured) and DPIC host Anne Holsinger, who discuss the case of Jeffery Woodand Texas' unusual legal doctrine known as the "law of parties." Wood's case garnered national media attention because he was sentenced to death despite having neither killed anyone nor even intended that a killing take place. His execution, which had been scheduled for August 24, was stayed by the Texas Court of Criminal Appeals to permit him to litigate a challenge to the prosecution's use of scientifically invalid predictions of future dangerousness by a psychiatrist who had been expelled from state and national psychiatric associations for similarly improper testimony in the past. In the podcast, Black explains the law of parties and its application in Wood's case, and discusses how the national dialogue that developed around Wood's case may affect the death penalty in the future.

On February 22, Virginia's legislature blocked a bill that would have allowed the death penalty for accomplices to murder who did not actually carry out the killing. The bill would have revised the state’s “triggerman rule,” which allows the death penalty only for the person directly responsible for the actual murder. Two weeks ago, the Senate version of the bill was rejected by the Courts of Justice Committee on a 7-7 vote. The House then passed its own version of the bill, forcing the Senate to reconsider the measure. The Courts Committee again rejected the expansion bill, this time by a vote of 8-6. The vote difference was attributed to Republican Senator Bryce Reeves, who said he changed his vote based on his religious beliefs. Similar bills were passed by the Virginia legislature in 2008 and 2009, but were vetoed by then-Governor Tim Kaine. In 2010 and 2011, the Senate Courts Committee rejected similar bills. Stephen Northup, executive director of Virginians for Alternatives to the Death Penalty, called the bill “an unnecessary[,] expensive and risky expansion of capital punishment.” Among those opposing the bill were representatives of Catholic organizations, the American Civil Liberties Union, andAttorney General Kenneth Cuccinelli. Some of these noted that the state already ranks second to Texas in the number of executions since the the death penalty was reinstated in 1976, and that expanding death penalty eligibility would increase the chances of executing an innocent person.

A new article to be published in the American Criminal Law Review explores the constitutionality of the death penalty for those convicted of felony murder, i.e., those who participated in a serious crime in which a death occurred, but were not directly responsible for the death. The article is by Joseph Trigilio and Tracy Casadio, both Deputy Federal Public Defenders in California and is titled "Executing Those Who Do Not Kill." The authors argue that the U.S. Supreme Court's decision in Tison v. Arizona (1987) should be overturned. Tison allows the death penalty for certain non-triggermen if the defendant was a major participant in the underlying felony and acted with a reckless disregard for human life. According to the law review, the analysis in Tison has been overturned in other cases, “Tison leads a trilogy of cases, including Stanford v. Kentucky and Penry v. Lynaugh, that represent a sharp break from a tradition of careful scrutiny on proportionality that considers both objective and subjective criteria in determining whether a certain category of defendants is constitutionally eligible for a death sentence.” Both Stanford and Penry have been overturned, and the authors maintain that, “under the proportionality analysis articulated in Atkins v. Virginia, Roper v. Simmons, and Kennedy v. Louisiana, the contemporary 'standards of decency' require a further narrowing of death penalty eligibility for those who do not kill nor intend to kill.” The article concludes, “In 2009, the Court cemented the new proportionality paradigm in Kennedy, expressly basing its analysis on the framework of Roper, Atkins, Coker, and Enmund. In so doing, the Court abandoned Tison’s analytical framework as no longer authoritative. The time has come to overturn Tison and to bar the execution of felony-murder accomplices who neither kill nor intend to kill.”